Developing a Confidentiality Policy

Recent years have seen an increase in the number and frequency of challenges to the confidentiality of library records across the United States, and a new dimension has been added to confidentiality concerns. Throughout the 1980s, the Office for Intellectual Freedom (OIF) received queries from individual librarians who had been pressured by the FBI or local law enforcement agencies for information about library users, or who were afraid of being held liable for a patron’s acts after providing information on such topics as bomb construction, weapons, or satanism. Some of these librarians were tempted to maintain special files on patrons who seemed “suspicious” or who made “unusual” requests. These queries revealed a lack of confidence in confidentiality procedures or a misunderstanding of the important links among confidentiality, intellectual freedom, and librarians’ professional and legal obligations to uphold the privacy rights of patrons.

Why Is Confidentiality Crucial to Freedom of Inquiry?

Inquiries about patron reading habits raise serious questions for librarians and patrons. For example, are you what you read? Would you want others to base decisions affecting your life on their opinion of the books you read, the music you listen to, the information you access over the Internet or other electronic networks or database services, or the films you view? How would library use change if patrons thought their reading records and other information about their lives would be open for scrutiny? How widely would people read knowing their choices might prejudice others against them? If libraries are to survive as centers for the free and uninhibited access to information so necessary to a democratic society, librarians must vigilantly guard their patrons’ privacy and freedom of inquiry.

To support librarians in their role as defenders of the right to read, in 1971 the IFC proposed, and the ALA Council adopted, the “Policy on Confidentiality of Library Records” (revised in 1975). This important addition to the IFC’s expanding inventory of tools for defending intellectual freedom was initiated in response to U.S. Treasury Department efforts to identify potentially “subversive” individuals based on their choice of reading material. Looking for the names of those who had borrowed or read books about the construction of explosives, treasury agents conducted inquiries in libraries in Ohio, California, Georgia, and Wisconsin. Librarians sounded the alarm over these apparent “fishing expeditions,” and the department ceased its inquiries—but not before some librarians had handed over their records.

The IFC, which is firmly committed to the freedom to read as a necessary corollary to freedom of expression, encouraged librarians to resist such open-ended government inquiries. One cannot exercise the right to read if the possible consequences include damage to one’s reputation, ostracism from the community or workplace, or criminal penalties. Choice requires both a varied selection and the assurance that one’s choice is not monitored. In the case of criminal investigations or other government inquiries, it is especially critical that a librarian preserve the patron’s confidentiality because the consequences of releasing information about the individual(s) under investigation may be dire and the potential for abuse of information about a person’s reading habits great.

A case in Decatur, Texas, dramatically illustrates this danger. Early in 1990, the Wise County District Attorney’s office, investigating a child-abandonment case, subpoenaed the records of the Decatur Public Library, requesting the names, addresses, and telephone numbers of all individuals who had checked out books on childbirth within the previous nine months, the titles they borrowed, and the dates the materials were checked out and returned. The police had no evidence indicating that the person who abandoned the child might have borrowed library books or otherwise used the library. Lacking any other leads, police were simply conducting a “fishing expedition.”

The director of the Decatur Public Library refused to release the records. Instead, she chose to respond, with the help of the city attorney, by filing a motion to quash the subpoena on behalf of the library’s patrons. On May 9, 1990, Texas District Court Judge John R. Lindsey ruled in favor of the library and quashed the subpoena. The library director in this case was successful in defending her patrons, but imagine the consequences if she had failed: all patrons who had borrowed books on childbirth might have been subjected to police interrogation based solely upon their choice of reading materials. Thanks to this librarian’s courageous implementation of the library confidentiality policy, patrons were not subject to such unjust and humiliating proceedings.

Threats to confidentiality arise within the library from loosely managed information or circulation systems, library staff or board members who are unaware of their responsibilities under existing confidentiality policy or state law, or from lack of any policy at all on the issue. Librarians or their staff may be asked for confidential information by patrons, journalists, students, or professors who wish to check on the reading habits of their students, or parents of young children who must pay overdue fines or who wish to monitor their children’s reading preferences. As more libraries become automated and computerize their patron information files, and as more libraries add access to the Internet, other electronic networks, database services, and e-mail services to the array of resources they offer their patrons, threats to privacy may arise from abusers of the system. Known as “hackers,” these pranksters and vandals enter the system without authorization and attempt to spy on other users or sabotage the system as a whole, using software of their own design or by exploiting loopholes in the system, sometimes causing major system breakdowns.

Finally, many of the most difficult and complicated challenges come from local or federal law enforcement officials investigating criminal activities, or from feuding litigants in civil cases. Although these situations are relatively infrequent, they can be intimidating if a librarian, staff, and governing board are inadequately prepared to respond.

In 1989, responding to an increase in external threats and the clear need for further education on intellectual freedom and confidentiality for all librarians, the ALA Intellectual Freedom Committee (IFC) initiated Confidentiality in Libraries: An Intellectual Freedom Modular Education Program. Concurrently, the ALA Council requested a new and more specific policy to address the problem of confidentiality in the context of law enforcement inquiries, a trend sparked by the FBI Library Awareness Program and emulated by law enforcement agencies at all levels across the country—from county sheriffs to urban detectives. The IFC developed a new policy, and Council adopted it at the June 1991 Annual Meeting (see “Policy concerning Confidentiality of Personally Identifiable Information about Library Users," part II, section 3). The remainder of the chapter discusses confidentiality and the law, state law protection of library records, what librarians can do, and writing, adopting, and implementing a confidentiality policy.